Open Mic Night: Does Subpoenaing a Home Voice Assistant Device Pose a Constitutional Threat?
The Fourth Amendment of the United States Constitution guarantees the right of citizens “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . and no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. This Amendment guarantees an individual’s fundamental right to privacy in their own home. Stanley v. Georgia, 394 U.S. 557, 565 (1969). There is a general understanding that possessions, such as a laptop computer or a cellular phone, can be seized and their contents searched with a valid warrant. Riley v. California, 134 S. Ct. 2473, 2485 (2014). But what about technological devices that one decides to invest in to improve the “quality of [their] life?”? Amy B. Wang, Can Amazon Echo Help Solve A Murder? Police Will Soon Find Out, Wash. Post (Mar. 9, 2017), https://www.washingtonpost.com/news/the-switch/wp/2017/03/09/can-amazon-echo-help-solve-a-murder-police-will-soon-find-out/?utm_term=.c01a88c258a8. For instance, devices containing voice assistants have become a staple in many Americans’ homes. See Andrew Burger, Report: Voice Assistant Penetration Jumps to 12% of U.S. Broadband Households, telecompetitor (Mar. 21, 2017, 1:53 PM), http://www.telecompetitor.com/report-voice-assistant-penetration-jumps-to-12-of-U-S-broadband-households/. What are the constitutional implications of subpoenaing these devices?
These devices, including Google Home, Amazon Echo, iPhone, and Android, contain speakers and microphones that listen for their designated wake words. See David Kravets, Amazon Refusing to Hand over Data on Whether Alexa Overheard A Murder, arstechnica (Feb. 23, 2017, 12:58 PM), https://arstechnica.com/tech-policy/2017/02/amazon-wont-disclose-if-alexa-witnessed-a-murder/. The device then records the user’s voice and transfers their requests to a processor, known as the cloud, for analysis. See id. The most distinctive feature of these types of devices is that their software is constantly running in the background. Tim Moynihan, Alexa and Google Home Record What You Say. But What Happens to That Data?, Wired (Dec. 5, 2016, 9:00 AM), https://www.wired.com/2016/12/alexa-and-google-record-your-voice. In other words, the microphone is always on: listening, waiting, and recording. See id. Police officers in Arkansas knew of this feature and sought to take advantage of it by seizing a defendant’s device as evidence in a recent criminal proceeding. See Jeff John Roberts, Police Ask Amazon’s Echo to Help Solve A Murder, Fortune (Dec. 27, 2016, 3:36 PM), https://fortune.com/2016/12/27/amazon-echo-murder/.
I. STATE OF ARKANSAS V. JAMES A. BATES
James A. Bates was arrested and charged with the murder of his friend at his home in 2015. State v. Bates, No. 04CR-16-0370 (Cir. Ct. Ark. filed Feb. 25, 2016). Police issued a warrant to seize and search the records of Mr. Bates’s Amazon Echo, which had been playing music in the background where his friend’s body had been found. Sean Gallagher, Police Ask: “Alexa, Did You Witness a Murder?,” arstechnica (Dec. 28, 2016, 3:45 PM), https://arstechnica.com/tech-policy/2016/12/police-ask-alexa-did-you-witness-a-murder/.
A. Amazon’s First Amendment Argument
The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. A “chilling effect” can result in the suppression of protected speech. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 694 (1978). Chilling is “the deterrent effect on constitutionally protected conduct brought about by the mere existence of an unconstitutional law.” Note, The Chilling Effect in Constitutional Law, 69 Colum. L. Rev. 808, 818 (1969). Historically, the Supreme Court has expressed its obligation to “insulate all individuals from the ‘chilling effect’ upon exercise of First Amendment freedoms.” Walker v. City of Birmingham, 388 U.S. 307, 345 (1967).
In Bates, Amazon refused to give up the records without a fight. See Gerald Sauer, A Murder Case Tests Alexa’s Devotion to Your Privacy, Wired (Feb. 28, 2017, 10:00 AM), http://www.wired.com/2017/02/murder-case-tests-alexas-devotion-privacy/. Amazon argued that Alexa’s recorded data and responses are protected by the First Amendment. Id. Amazon argued that the data stored in the cloud, which was transmitted from the defendant’s device, was expressive content as it could have included searches requested by the user. See Kravets, supra. By releasing this data, Amazon argued that speech would be chilled. Id. Additionally, Amazon argued that Alexa, itself, has protected speech rights and cited Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014), in support of its argument. See Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant at 11, State v. Bates, No. 04CR-16-0370 (Cir. Ct. Ark. Feb. 17, 2017)_(relying on Zhang to assert that search engine results are protected speech under the First Amendment). Despite the First Amendment battle, Amazon released the records with Bates’s consent. Iman Smith, Amazon Releases Echo Data in Murder Case, Dropping First Amendment Argument, PBS (Mar. 8, 2017, 2:38 PM), http://www.pbs.org/newshour/rundown/amazon-releases-echo-data-murder-case-dropping-first-amendment-argument/.
B. A Fourth Amendment Privacy Violation?
Contrary to Amazon’s argument, a violation of the right to privacy seems to be the bigger threat in this case. It has not yet been disclosed what, if anything, Alexa recorded after Amazon conceded to the warrant. Uncertainty remains regarding the ramifications of releasing the records and what the result would have been had Bates not given Amazon permission to do so. Internet search engine companies may release an individual’s search history that they have made in their home, and while voice assistant devices are considered internet search engines, the company does not release what you type prior to pressing “search.” See Gonzales v. Google, Inc., 234 F.R.D. 674, 687–88 (N.D. Cal. 2006). The device’s required wake words differentiate the voice assistant from the manual retrieval of information via one of the search engines. See Roberts, supra.
The possible constitutional violation lies within the ability to subpoena records of the audio snippets that are recorded prior to the verbal communication of a wake word. See Anick Jesdanun, How Amazon Echo Listens and What It Stores, Phys Org (Dec. 29, 2016), https://phys.org/news/2016-12-amazon-echo.html. These snippets are temporarily stored in the device itself and can later be reviewed. Id. Aware of this capability, the police in Bates wanted the archives containing what was recorded prior to the command of the assistant to play music. See id. If something incriminating was said prior to stating Alexa’s name, it arguably should be protected from a search under the Fourth Amendment, as there is a reasonable expectation of privacy in one’s home. See Katz v. United States, 389 U.S. 347, 358 (1967).
While the First Amendment argument that speech will be chilled if the records from James Bates’s Amazon Echo are released to police seems strong, it is a stretch of the protected right to free speech. An argument based upon a violation of the Fourth Amendment seems to be more sound. As technology develops and advances, these voice assistant devices could be a trap for unwary individuals. Owners of these devices often do not realize that they are up next at open mic night in their homes, with law enforcement officials serving as their audience.
*Tiffany Meekins is a third-year evening student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Tiffany is a member of the Royal Graham Shannonhouse III Honor Society and has served for several years as an executive board member for University of Baltimore Students for Public Interest.